Basic Terminology in the Field of Public Administration

Basic Terminology in the Field of Public Administration dr. hab. Jerzy Supernat Institute of Administrative Sciences University of Wrocław

Basic Terminology in the Field of Public Administration Ü administrative law Ü public interest Ü state (~ government) Ü decentralisation Ü supervision Ü forms of decentralisation Ü self-government Ü territorial self-government Ü special self-governments Ü organ of public administration Ü offices of public administration Ü types of organs Ü tasks and competences Ü categories of tasks Ü functions of public administration Ü administration of order Ü administration of provision Ü administration of ownership Ü administration of development dr. hab. Jerzy Supernat

Basic Terminology in the Field of Public Administration Administrative law þ modern state cannot function without public administra -tion þ public administration cannot function without administrative law þ administrative law is not law of administration dr. hab. Jerzy Supernat

Basic Terminology in the Field of Public Administration Zofia Duniewska: Administrative law is a body of public law that deals with the constitution and functions of public administration as well as with the rights and duties of persons getting into a relationship with administration. Its main purpose is to protect the common good. dr. hab. Jerzy Supernat

Basic Terminology in the Field of Public Administration Jacek Jagielski: 1/2 Administrative law is one of the most complex areas of the Polish legal system. Today it is considered a key element of the public law category, although it was once associated with the entire domain of public law. Its regulations concern almost all areas of life as well as the activities of individuals and certain other subjects functioning within the framework of the state. Administrative law provisions are thus some of the most important components of the entire legal system. dr. hab. Jerzy Supernat

Basic Terminology in the Field of Public Administration 2/2 Administrative law is composed of two kinds of rules: 1. The rules on the organization and functioning of the administrative apparatus and other bodies designed to perform public administration duties, as well as on the conduct of representatives of the administration and their powers over administered subjects outside the administrative apparatus. 2. The rules governing the rights of the administered subjects vis-à-vis the administration and the rights and duties of natural and legal persons and other subjects in various areas toward whom the interest and activity of public administration is directed. dr. hab. Jerzy Supernat

Basic Terminology in the Field of Public Administration It is widely accepted that administrative law: • is the most extensive and flexible body of law controlling the legal situa- tion of both individuals and almost all other subjects operating within the state • usually contains imperative norms (absolutely binding norms – ius cogens) • is usually supported by public power • has a broad scope • is difficult to codify • has rules which are inserted in acts of different rank, enacted by various organs, in different periods of time • is not politically neutral (in the words of Ronald Dworkin it is a political enterprise) • is difficult to interpret • includes local law binding on the territory of the organ issuing it dr. hab. Jerzy Supernat

Basic Terminology in the Field of Public Administration Internal division of administrative law Administrative law Structural a. l. (who is acting? ) Substantive a. l. (what is the object of the action? ) Procedural a. l. (how are they acting? ) dr. hab. Jerzy Supernat

Basic Terminology in the Field of Public Administration Europeanization of administrative law vs. European administrative law in the first case European law influences the content of national administrative law which is the basis of functioning of public administration in the other case the norms of European law form the direct legal basis for functioning of public administration dr. hab. Jerzy Supernat

Basic Terminology in the Field of Public Administration Public interest The public interest, arising from the needs for common good*, is, in modern liberal democracy, the only justification for any intervention of public administration in the matters of individuals and non-public organisms set up by individuals and/or other organisms. This is due to the fact that the public interest is the only justification for any intervention of public law, including administrative law, in matters which are either subject to the civil (private) law or outside the limits of the law. * Art. 1 of the Constitution: The Republic of Poland shall be the common good of all its citizens. dr. hab. Jerzy Supernat

Basic Terminology in the Field of Public Administration 11 Hubert Izdebski Public interest – England Before the emergence of what is sometimes called „modern interventionist administrative state”, the judge-made rule was that owners were entitled to prefer their own interest to the common good (freedom of property and freedom of contract were important issues – JS). Since the second half of the 19 th century there has been a growth of responsibilities of the state in the social and economic fields, introduced by means of legislation (on factory protection, housing, environment protection, education, health care, etc. ), which evoked the „public interest”. Humanitarian and the resulting social principles have been more and more prevailing over individualism, which was typical of England of the 18 th century and the first half of the 19 th century. dr. hab. Jerzy Supernat

Basic Terminology in the Field of Public Administration 2 Public interest – the European continent On the European continent, though the point of departure for the evolution had been quite different (ius politiae enjoyed by the absolute monarchs, and, therefore, a recognized predomination of the public interest), the liberal, individual thinking triumphed in the 19 th century, with the same convictions concerning the role of the freedom of property and the freedom of contract. Since that time, however, „modern interventionist administrative state” has been being built. This meant more and more exceptions from rules of the private law, justified by „the common good” and/or „the public interest”. Moreover, communist and fascist regimes succeeded, though temporarily, in restoring, and even monopoly, of public interest. dr. hab. Jerzy Supernat

Child labour

Basic Terminology in the Field of Public Administration Development of „modern interventionist administrative state” n n freedom of property freedom of contract vs. n n freedom of want freedom of disease

Basic Terminology in the Field of Public Administration 3 Ideas of „less state” and of New Public Management, typical of the 1980 s, served as a break put on an unlimited development of „modern interventionist administrative state”. Their practical role, however, was to • rediscover the place of civil-law rules in society and in the government • focus on the necessity of searching for the existence of the public interest while thinking about the state’s intervention rather than to stimulate abandoning the idea of such state. dr. hab. Jerzy Supernat

Basic Terminology in the Field of Public Administration State (~ government) Ü state in a broader sense = the whole public power on a given territory Ü state in a strict sense = only a centralised public power system Art. 7 of the Constitution The organs of public power shall function on the basis of, and within the limits of, the law. Art. 10 of the Constitution The system of government of the Republic of Poland shall be based on the separation of and balance between the legislative, executive and judicial powers. Art. 163 of the Constitution Local government shall perform public tasks not reserved by the Constitution or statutes to the organs of other public powers. dr. hab. Jerzy Supernat

Basic Terminology in the Field of Public Administration Decentralisation is a means of • putting a certain public entity and/or a certain public activity out of a fully centralised direction (control in the English sense), and therefore out of the state administration (but not out of the system of public powers) • giving such public law entity a competence of autonomous carrying out such activity Ø on its own behalf Ø on its own responsibility The counterbalance to decentralisation should be supervision. dr. hab. Jerzy Supernat

Basic Terminology in the Field of Public Administration Decentralised administration is not the state administration in the strict sense of „the state”. By contrast, in the time of „real socialism” all public administration was officially the state administration, but there was no such phenomenon which now could be called decentralisation. It is quite comprehensible as „real socialism” relied on centralisation, and, even more, on concentration of the power. Centralised state administration was only an instrument in the hands of the highly centralised apparatus of the Communist party. dr. hab. Jerzy Supernat

Basic Terminology in the Field of Public Administration Supervision (in its Polish sense) is a specific kind of competence of an authority higher than that supervised, which means: • less than competence of direction (control in the English sense) • more than competence of control (control in Polish sense, i. e. right of simple examination and evaluation of controlled activities) Supervision means rights to apply allowed instruments of supervision (supervisory decision), but only after • passing the procedure provided by the law • proving that the activities supervised were not conforming to the standards provided for in the law dr. hab. Jerzy Supernat

Basic Terminology in the Field of Public Administration Instruments of supervision are divided into those relating to • organs (e. g. confirmation of the election, revocation or disso- lution) • persons (e. g. suspension, dismissal, degradation) • acts (authorisation to issue an act, confirmation, suspension, annulation / declaring illegality) Supervision can be made • ex ante, before the supervised activity is actually undertaken • ex post, with respect to what was already done In Poland legality (conformity with the law) is the only criterion of supervision over activities (general acts) of territorial selfgovernment, and supervision is made only ex post. dr. hab. Jerzy Supernat

Basic Terminology in the Field of Public Administration Forms of decentralisation According to the classical public law theory of Central Europe there are four forms of decentralisation: • self-government • public undertaking § public enterprise § public establishment (e. g. university, school, hospital, museum, library) • delegation of public tasks to institutions of selfgovernment, to enterprises, and to establishments, as well as to non-public institutions, in particular NGOs dr. hab. Jerzy Supernat

Public establishment

Basic Terminology in the Field of Public Administration Article 15 of the Constitution 1. The territorial system of the Republic of Poland shall ensure the decentralization of public power. 2. The basic territorial division of the State shall be determined by statute, allowing for the social, economic and cultural ties which ensure to the territorial units the capacity to perform their public duties. Basic territorial division of the Republic of Poland is indeed made for the purposes of decentralization. It consists of three units: • municipalities (gminy) • districts (powiaty) • regions / voivodships (województwa) dr. hab. Jerzy Supernat

Basic Terminology in the Field of Public Administration There a variety of different arrangements which are often included in the discussions on decentralization. For example G. S. Cheema and D. A. Rondinelli have identified four major forms of decentralization: c devolution – transfer of responsibility for governing, understood more broadly – i. e. the creation or strengthening, financially or legally, of subnational units of governments, whose activities are substantially outside the direct control of central government c delegation – assignment of specific decision making authority – i. e. the transfer of managerial responsibility for specifically defined functions to public organizations (e. g. local governments) outside the normal bureaucratic structure of central government c deconcentration – spatial relocation of decision making – the transfer of some administrative responsibility or authority to lower levels within central government ministries or agencies c divestment – best treated as decentralization and it occurs when planning and administrative responsibility or other public functions are transferred from government to voluntary, private, or non-governmental institutions with clear benefits to and involvement of the public dr. hab. Jerzy Supernat

H. Izdebski: Devolution denotes a specific type of decentralisation – a transfer of a part of previous competences of the central power to macro-regional institutions.

Basic Terminology in the Field of Public Administration Self-government Ü territorial (general) self-government Ü special self governments dr. hab. Jerzy Supernat

Basic Terminology in the Field of Public Administration Territorial self-government operates in all or in some units of territorial division of the state: it is always present in municipalities (basic units of territorial division) but more and more frequently it is found at higher levels, which is, in particular, the case of bigger states. The contemporary principle is that diverse levels of territorial self-government cannot be in any way regarded as a hierarchical organisation; in particular, the respective organs of higher level cannot reverse or change decisions of lower organs. dr. hab. Jerzy Supernat

Basic Terminology in the Field of Public Administration Territorial self-government in Poland can be divided into: • local self-government c the self-government of municipalities c the self government of districts • regional self-government or the self-government of voivodships Regional government is indispensable in any bigger unitary state inter alia due to regional policy of the European Union. dr. hab. Jerzy Supernat

Basic Terminology in the Field of Public Administration Article 3 – Concept of local self-government dr. hab. Jerzy Supernat

Basic Terminology in the Field of Public Administration Article 165 of the Constitution 1. Units of territorial self-government shall possess legal personality. They shall have rights of ownership and other property rights. 2. The self-governing nature of units of territorial self-government shall be protected by the courts. dr. hab. Jerzy Supernat

Basic Terminology in the Field of Public Administration Special self-governments • • professional self-government business self-government Article 17 of the Constitution 1. By means of a statute, self-governments may be created within a profession in which the public repose confidence, and such selfgovernments shall concern themselves with the proper practice of such professions in accordance with, and for the purpose of protecting, the public interest. 2. Other forms of self-government shall also be created by means of statute. Such self-governments shall not infringe the freedom to practice a profession nor limit the freedom to undertake economic activity. dr. hab. Jerzy Supernat

Pharmacist in the 16 th century.

Basic Terminology in the Field of Public Administration Traditional self-government (autonomy) of schools of higher education Art. 70. 5. of the Constitution The autonomy of the institutions of higher education shall be ensured in accordance with principles specified by statute. dr. hab. Jerzy Supernat

Basic Terminology in the Field of Public Administration Organ of public administration The state administration (state in a broader sense) is composed of diverse elements but, as far as its mission of representing imperium, i. e. the public power competence that consists in ordering, forbidding and/or allowing, is concerned, it is organs of public administration that constitute its essential components. The term „organ” is typical of the Germanic approach to public administration (in the field of public law it reflects the Germanic civil law concept of the organ of legal person). In the French and the English tradition the notion of „authority” prevails over the concept of organ. dr. hab. Jerzy Supernat

Basic Terminology in the Field of Public Administration Exemplary organs of public administration in Poland: • the minister • the voivod • the mayor of municipality Nota bene: the term organ is not used to the ministry, the voivod office or the municipality office, which can be defined as offices of the respective organs. dr. hab. Jerzy Supernat

Basic Terminology in the Field of Public Administration Offices of public administration Offices have no powers of their own, as they are only an auxillary apparatus of their chiefs – the organs they serve. Nevertheless employees of offices may express the imperial will of the public power. They may do that if it is delegated to them (such delegation is known in Poland as internal deconcentration) by their respective chief as the organ of public administration, and only on his/her/its behalf. Art. 268 a of the 1960 Code of Administrative Procedure The organ of public administration may, in written form, authorise employees of the organisational unit they direct to settle on a solution to a given kind of matters, in particular to issue on its behalf administrative decisions, procedural decisions, and certificates. dr. hab. Jerzy Supernat

Basic Terminology in the Field of Public Administration Types of organs • unipersonal (single-person), i. e. composed of one person • collegial (board), i. e. composed of a number of persons In contemporary public administration, the model of unipersonal organs is predominant, although in each national administrative system there also collegial organs: • at the top of administrative hierarchy • in the main decision-making authorities of territorial selfgovernment (councils elected by the people) • in the authorities of public audit dr. hab. Jerzy Supernat

Basic Terminology in the Field of Public Administration Tasks and competences scope of activity public tasks legal competences • the term „tasks” refers to the scope of administrative activities. • the term „competences” concerns authorisation of a given organ to act, within the field of its appropriate tasks, by means of specific legal forms of activity attributed to it by law. It means: § an expressly and legally bestowed power to decide on a given matter or issue of the public interest in a given legal form § not only a right but also an obligation binding the competent organ dr. hab. Jerzy Supernat

Basic Terminology in the Field of Public Administration „Hard” competences – administrative acts Imperium solutions to problems arising within the sphere of legal competence of an organ of public administration are commonly called administrative acts. There are: • normative administrative acts (administrative regulations); to enter into force, they have to be published (in Poland in the Journal of Laws or in the Voivodship Official Journals) • individual administrative acts (administrative decisions); to have the legal effect, they have to be formally delivered to a given party or, at least, formally presented to it dr. hab. Jerzy Supernat

Basic Terminology in the Field of Public Administration Categories of tasks • tasks of the state in strict sense; in Poland: tasks in the field of governmental administration (zadania z zakresu administracji rządowej) • proper tasks (zadania własne) of self-government, esp. tasks of units of territorial self-government • commissioned tasks (zadania zlecone); transferred by an act of Parliament • entrusted tasks (zadania powierzone); transferred by virtue of an agreement concluded between a competent organ of the state administration and an authority of decentralised administration In Poland, since the 1997 Constitution supervision over performance of all tasks of units of territorial self-government has been restricted to conformity with the law (art. 171). dr. hab. Jerzy Supernat

Basic Terminology in the Field of Public Administration Functions of public administration • administration of order • administration of provision • administration of ownership • administration of development Woodrow Wilson (1856 -1924) founder of the science of public administration in the United States. dr. hab. Jerzy Supernat

Basic Terminology in the Field of Public Administration of order (administracja reglamentacyjna) Administration of order (administration of imperium) performs the classical functions of ordering, forbidding or allowing a certain conduct, by means of administrative acts, normative and/or individual. Ü the function of adjudication (the function of deciding in individual cases) Ü adjudicative administration and regulatory administration H. Izdebski: Activities of administration of order, as classical, can still be carried out in a traditional imperative way, though following such style of administering, which is distant from the standards of good governance, seems to be more and more difficult. dr. hab. Jerzy Supernat

Basic Terminology in the Field of Public Administration of provision (administracja świadcząca) • provision of public services in the social field (education, health care, social aid, etc. ); these services are traditionally provided by public establishments (zakłady administracyjne) • provision of services qualified as utilities or public utilities (public transport, telecommunications, water, electricity, gas supply, etc. ); these services are traditionally provided by public enterprises (these days their role has been diminishing, as some of them are transformed into publicowned companies, which can be the first step towards their privatisation) dr. hab. Jerzy Supernat

Basic Terminology in the Field of Public Administration of ownership (administracja właścicielska) Administration of ownership (administration of dominium) performs tasks of management of public property: • public goods (streets, public parks, etc. ) • administrative assets (used by respective offices in order to perform certain public tasks) • business assets dr. hab. Jerzy Supernat

Basic Terminology in the Field of Public Administration of development means public planning in its various aspects involving: • town and country planning • regional strategic planning • development planning within the framework of the Euro- pean Union structural policies dr. hab. Jerzy Supernat

Concluding Remark Do not ask what the Government can do for you. Ask why it doesn't. Gerhard Kocher dr. hab. Jerzy Supernat